Jury begins deliberations in Greenpeace trial

A jury of nine heard closing arguments Monday in the civil trial between Energy Transfer and Greenpeace over the Dakota Access Pipeline, taking up deliberations after a final rebuttal from Energy Transfer.

Energy Transfer subsidiary Dakota Access, LLC, installed the roughly 1,200-mile pipeline running from North Dakota to Illinois in 2016 and 2017. The Standing Rock Sioux Tribe, whose reservation is in southern North Dakota, protested the pipeline due to concerns over a potential leak as well as its route through unceded treaty land. The sometimes violent protests garnered international attention and drew more than 100,000 people to the area from April 2016 through most of February 2017. Greenpeace supported the protests and Energy Transfer has blamed the environmental group for some of the unlawful acts that took place there including vandalism – as well as for the eventual decision of nearly half the pipeline’s investors to reduce or end their commitment to the project.

The company cites the protests as the reason for a five-month delay in the pipeline’s completion, forcing it to miss a Jan. 1, 2017, online production date that it says cost them lost profits and shareholder value. It’s suing Greenpeace for $300 million.

In their closing arguments, both sides argued the others’ claims were baseless.

Energy Transfer maintained Greenpeace was guilty on all nine counts listed in the energy company’s complaint: Trespass to land and property, improper interference with property (also known as conversion), nuisance, separate counts for aiding and abetting all three, defamation affecting the company’s business relationships and agreements, and civil conspiracy.

Lead counsel for Energy Transfer Trey Cox revisited unsavory scenes from the protests – protestors lobbing “human feces, water bottles full of urine, burning logs” and other items at law enforcement and security, pouring sand in the engines of construction equipment, cutting wires and slitting the tires of police vehicles – arguing it was tied to Greenpeace’s involvement and influence.

Greenpeace maintains its primary involvement in the protests was sending indigenous nonviolent direct action trainers, camping supplies and a biodiesel-powered solar truck called Rolling Sunlight to the site. Though some of its trainers, acting on behalf of the Indigenous Peoples Power Project, did arguably trespass, according to Cox, and lock themselves to construction equipment, Greenpeace says protesters did not do it at Greenpeace's direction.

To connect Greenpeace to some protesters’ violent and destructive actions, Cox quoted the testimony of someone who had attended the protests saying the training was more like direct action training than nonviolent direct action training. Cox also noted emails of Greenpeace employees taking credit for stopping construction on the pipeline.

During the trial, Cox pulled up emails from Greenpeace USA’s executive director at the time of the protests, Annie Leonard, including one to the organization’s board members saying Greenpeace had played a “massive role” in the pipeline protests “since day one.”

Greenpeace attorneys and several of the called witnesses said they overstated the organization’s influence in statements like those depicted in the emails; they were merely excited over the number of trainings held, supplies donated, fundraising contributed, protesters' interference with the progress of the project and, later, the divestment of banks, but the protests had plenty of support apart from Greenpeace’s involvement.

Greenpeace contributed over $55,000 to the protests, according to Cox, though Greenpeace disputed that number and lesser numbers are cited in emails. Then-Executive Director Leonard also personally raised about $90,000 for the protests. The organization claims it sent less than 10 trainers to the camp, who claimed they were able to provide trainings to about 5,000 people.

GoFundMe campaigns started on behalf of the protests raised close to $8 million, and over the life of the protests, more than 100,000 people visited the camp, according to Everett Jack, lead attorney for Greenpeace Inc. in the case.

Cox also cited some of the alleged defamatory statements, including a statement often cited in the case from a joint letter with BankTrack, an organization that tracks banks’ environmental and social investment practices. Several Greenpeace organizations, including Greenpeace USA and Greenpeace International, signed onto the letter, along with over 500 other organizations.

“DAPL personnel deliberately desecrated documented burial grounds and other culturally important sites,” the letter read.

The pipeline didn’t “deliberately desecrate” burial sites, it took “deliberate care to avoid” doing so in its process of identifying historical and cultural resources along the pipeline’s route, Cox said. Cox also said it was a misrepresentation to say, as Greenpeace did in some publications, that the pipeline ran through Sioux “tribal land and waters,” as it did not cross reservation land. Instead, the organization should have specified it was “unceded treaty land,” Cox said.

Greenpeace’s attorneys emphasized in their closing arguments that though Energy Transfer’s legal team ardently argued its case, “argument is not evidence.” Because Energy Transfer filed the lawsuit against Greenpeace, the burden of proof ultimately rests on the energy company to prove “by the greater weight of the evidence,” and by “clear and convincing evidence” on some counts, that Greenpeace was guilty of the company’s claims against it.

Attorneys for Greenpeace Inc., Greenpeace International and Greenpeace Fund, all of whom Energy Transfer named as defendants in the case, argued that the energy company did not effectively prove that the five-month delay in construction was specifically due to Greenpeace's involvement, nor did it speak to the effects other third parties may have had on the project.

If a plaintiff seeks to prove by circumstantial evidence that a defendant was the proximate cause of damages to the plaintiff, the plaintiff must eliminate other potential causes, Greenpeace attorney Everett Jack argued Monday. Energy Transfer did not prove that any of the other signatories to the BankTrack letter didn’t cause any of the damages the company has claimed, Jack said.

In addition, none of Energy Transfer’s witnesses, nor any law enforcement officers who testified, nor any documents from the U.S. Army Corps of Engineers, nor any of Energy Tranfer’s seven security companies blamed Greenpace for the damages or delay.

“None of the plaintiff's experts testified that the defendants were a proximate cause of claimed damages,” Jack said.

Greenpeace’s attorneys also contended that if Energy Transfer is seeking damages from three Greenpeace entities, as it is, then the law requires that the company must spell out how much of the damages each is responsible for. Instead, Energy Transfer has left the jury to resort to “speculation or guesswork,” according to the attorneys.

As for the alleged defamatory statements, the attorneys pointed out that a United Nations report and others had made the claims Greenpeace later made or signed onto and that Greenpeace had ample reason to believe they were all true.

The jury began deliberations Monday afternoon, but many speculate it could take the jury days or even weeks to reach a verdict because of the complicated nature of the case. The jury must reach a unanimous decision.